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(a) In the event that COMPANY is required by law in any judicial or governmental proceeding or otherwise to disclose any XPLORE Information, COMPANY will give XPLORE prompt written notice of such request so that XPLORE may seek a protective order or appropriate remedy. If, in the absence of a protective order, COMPANY determines, upon the advice of counsel, that it is required to disclose such XPLORE Information, it may disclose such XPLORE Information only to the extent compelled to do so; provided, however, that COMPANY gives XPLORE written notice of the portion of XPLORE Information to be disclosed as far in advance of the disclosure as is practicable and uses its reasonable best efforts, at XPLORE’s expense, to obtain assurances that confidential treatment will be accorded to such XPLORE Information. (b) In the event that XPLORE is required by law in any judicial or governmental proceeding or otherwise to disclose any COMPANY Information, XPLORE will give COMPANY prompt written notice of such request so that COMPANY may seek a protective order or appropriate remedy.

All Confidential Information shall be expressly identified by the Disclosing Party.

2neutral

This Agreement shall remain in full force and effect for a period of five (5) years from the date hereof or until such time as all of the Proprietary Information becomes subject to any of the exceptions set forth in Paragraph 5 hereof.

Some obligations of Agreement may survive termination of Agreement.

1entailment

The obligations undertaken by OCERA and COMPANY hereunder shall not apply to any portion of the Proprietary Information disclosed hereunder which: a. was known to the non-disclosing party prior to the disclosure of such Proprietary Information by the disclosing party; b. is independently developed by the receiving party without the use of, access to, or reference to the disclosing party’s Proprietary Information;

Receiving Party may independently develop information similar to Confidential Information.

1entailment

Notwithstanding the foregoing, OCERA and COMPANY may each retain one (1) copy of such information in their confidential files solely for record keeping purposes to ensure compliance with this Agreement, with such copy remaining subject to the confidentiality obligations of this Agreement.

Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information.

1entailment

OCERA and COMPANY each agrees that it shall regard, maintain and preserve the secrecy and confidentiality of any and all information and data, whether in oral or written form, including but not limited to, clinical study synopses, clinical study plans, costs, products, processes, methods, concepts, ideas, programs, formulae, apparati, chemicals, organisms, molecules, prototypes, techniques, know-how, marketing plans, business plans, data, strategies, forecasts, customer or supplier lists or technical requirements of customers, or other trade secrets (collectively referred to herein as the “Proprietary Information”) of the other party which may be disclosed to or obtained by it pursuant to this Agreement.

Confidential Information may include verbally conveyed information.

1entailment

Notwithstanding the above, each of COMPANY and XPLORE agree that the other Party may disclose the COMPANY Information and the XPLORE Information, respectively, and portions thereof, as well as the information described in clause (iv) of the preceding sentence, to those of such other Party’s directors, officers, employees and, representatives (including financial advisors, lawyers and accountants) of such other Party’s advisors (collectively, “Representatives”) who need to know such Information for the Permitted Use.

Receiving Party shall not solicit some of Disclosing Party's representatives.

2neutral

Each party hereto shall limit access to the other party’s Proprietary Information to those of its employees, agents, advisors, and consultants, who have a reasonable need for access to such information in connection with the discussion and exploration of the Purpose and who shall be subject to the non-disclosure covenants contained herein.

Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors).

1entailment

Except as may be necessary for the discussion and exploration of the Purpose, OCERA and COMPANY each agrees that it will make no copies, photocopies, facsimiles, or other reproductions of any documents, drawings, electronic data or the like containing the other party’s Proprietary Information.

Receiving Party may create a copy of some Confidential Information in some circumstances.

1entailment

(a) In the event that COMPANY is required by law in any judicial or governmental proceeding or otherwise to disclose any XPLORE Information, COMPANY will give XPLORE prompt written notice of such request so that XPLORE may seek a protective order or appropriate remedy. If, in the absence of a protective order, COMPANY determines, upon the advice of counsel, that it is required to disclose such XPLORE Information, it may disclose such XPLORE Information only to the extent compelled to do so; provided, however, that COMPANY gives XPLORE written notice of the portion of XPLORE Information to be disclosed as far in advance of the disclosure as is practicable and uses its reasonable best efforts, at XPLORE’s expense, to obtain assurances that confidential treatment will be accorded to such XPLORE Information. (b) In the event that XPLORE is required by law in any judicial or governmental proceeding or otherwise to disclose any COMPANY Information, XPLORE will give COMPANY prompt written notice of such request so that COMPANY may seek a protective order or appropriate remedy.

Receiving Party shall notify Disclosing Party in case Receiving Party is required by law, regulation or judicial process to disclose any Confidential Information.

2neutral

The obligations undertaken by OCERA and COMPANY hereunder shall not apply to any portion of the Proprietary Information disclosed hereunder which: a. was known to the non-disclosing party prior to the disclosure of such Proprietary Information by the disclosing party; b. is independently developed by the receiving party without the use of, access to, or reference to the disclosing party’s Proprietary Information; c. is, or shall become, other than by a breach of this Agreement by the non-disclosing party, generally available to the public; d. shall, by lawful means, be made available to the non-disclosing party by a third party having a right to disclose it, other than a third party introduced to the non-disclosing party by the disclosing party in connection with the Purpose; or

Receiving Party may acquire information similar to Confidential Information from a third party.

1entailment

Each party hereto shall limit access to the other party’s Proprietary Information to those of its employees, agents, advisors, and consultants, who have a reasonable need for access to such information in connection with the discussion and exploration of the Purpose and who shall be subject to the non-disclosure covenants contained herein.

Receiving Party may share some Confidential Information with some of Receiving Party's employees.

1entailment

C. Each party hereto is willing to disclose such confidential, proprietary and trade secret information to the other party solely in order to enable it to discuss and explore the Purpose and for no other purpose, and each party hereto agrees that it shall maintain the confidentiality of the information of the other party in accordance with the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the foregoing, OCERA and COMPANY agree as follows: 1. Preservation of Confidentiality. OCERA and COMPANY each agrees that it shall regard, maintain and preserve the secrecy and confidentiality of any and all information and data, whether in oral or written form, including but not limited to, clinical study synopses, clinical study plans, costs, products, processes, methods, concepts, ideas, programs, formulae, apparati, chemicals, organisms, molecules, prototypes, techniques, know-how, marketing plans, business plans, data, strategies, forecasts, customer or supplier lists or technical requirements of customers, or other trade secrets (collectively referred to herein as the “Proprietary Information”) of the other party which may be disclosed to or obtained by it pursuant to this Agreement. Each party hereto shall take reasonable and necessary measures to preserve the secrecy and confidentiality and avoid the unauthorized use or disclosure of the other party’s Proprietary Information, including, without limitation, taking such measures of protection as it takes to protect its own confidential, proprietary or trade secret information. Each party hereto shall limit access to the other party’s Proprietary Information to those of its employees, agents, advisors, and consultants, who have a reasonable need for access to such information in connection with the discussion and exploration of the Purpose and who shall be subject to the non-disclosure covenants contained herein. 2. Covenant Not to Use or Disclose. OCERA and COMPANY each agrees that it will not, at any time, without the prior written consent of the other party, use or disclose the other party’s Proprietary Information for any reason or in any manner whatsoever except as may be necessary for the discussion and exploration of the Purpose.

Receiving Party shall not use any Confidential Information for any purpose other than the purposes stated in Agreement.

1entailment

(a) In the event that COMPANY is required by law in any judicial or governmental proceeding or otherwise to disclose any XPLORE Information, COMPANY will give XPLORE prompt written notice of such request so that XPLORE may seek a protective order or appropriate remedy. If, in the absence of a protective order, COMPANY determines, upon the advice of counsel, that it is required to disclose such XPLORE Information, it may disclose such XPLORE Information only to the extent compelled to do so; provided, however, that COMPANY gives XPLORE written notice of the portion of XPLORE Information to be disclosed as far in advance of the disclosure as is practicable and uses its reasonable best efforts, at XPLORE’s expense, to obtain assurances that confidential treatment will be accorded to such XPLORE Information. (b) In the event that XPLORE is required by law in any judicial or governmental proceeding or otherwise to disclose any COMPANY Information, XPLORE will give COMPANY prompt written notice of such request so that COMPANY may seek a protective order or appropriate remedy.

Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information.

2neutral

(a) In the event that COMPANY is required by law in any judicial or governmental proceeding or otherwise to disclose any XPLORE Information, COMPANY will give XPLORE prompt written notice of such request so that XPLORE may seek a protective order or appropriate remedy. If, in the absence of a protective order, COMPANY determines, upon the advice of counsel, that it is required to disclose such XPLORE Information, it may disclose such XPLORE Information only to the extent compelled to do so; provided, however, that COMPANY gives XPLORE written notice of the portion of XPLORE Information to be disclosed as far in advance of the disclosure as is practicable and uses its reasonable best efforts, at XPLORE’s expense, to obtain assurances that confidential treatment will be accorded to such XPLORE Information. (b) In the event that XPLORE is required by law in any judicial or governmental proceeding or otherwise to disclose any COMPANY Information, XPLORE will give COMPANY prompt written notice of such request so that COMPANY may seek a protective order or appropriate remedy.

Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement.

2neutral

All the Confidential Evaluation Material will be and remains the property of the Company. (7) The following information provided by the Company shall not be deemed Confidential Evaluation Material: (A) any information that is or becomes generally available to the public other than as a result of an improper disclosure by you or your representatives; (B) any information which becomes legally available to you from a source other than the Company that is not, to your knowledge after reasonable inquiry, bound by a confidentiality obligation to the Company; (C) any information that is already in your possession as of the date hereof or (D) any information that is independently developed by you without use of or reference to the Confidential Evaluation Material. (8) Neither this letter agreement nor any action taken in connection with this letter agreement will give rise to any obligation on the part of either you or the Company (a) to engage in any discussions or negotiations with the other party or with any of the other party’s representatives, or (b) to pursue or enter into any transaction of any nature with the other party. The parties acknowledge and agree that neither shall have any legally binding commitment for a transaction unless set forth in a separate written agreement that is executed and delivered by both of them. (9) Nothing contained in this letter agreement nor the conveying of Confidential Evaluation Material hereunder shall be construed as granting or conferring any rights by license or otherwise in any trademark, patent, copyright, trade secret, technological information or other information, or other intellectual property.

Agreement shall not grant Receiving Party any right to Confidential Information.

1entailment

(4) Except as may be required by court order or legal process, neither party hereto nor any of its representatives will disclose to any other person or entity: (a) the fact that information regarding the Company is being or has been furnished to you; (b) the fact that discussions or negotiations regarding any transaction are or have been taking place between representatives of you and the Company, or any information regarding the status or terms of any such discussions or negotiations between the Company and you or the identity of the parties thereto; (c) the fact that the Company is or has been considering the possibility of entering into a transaction with you of the nature discussed by you and the Company.

Receiving Party shall not disclose the fact that Agreement was agreed or negotiated.

1entailment

As a condition to the Company’s furnishing to you and your representatives financial and other information which has not theretofore been made available to the public, you and your representatives agree to treat all such non-public information furnished to you and your representatives in writing or orally by the Company or its representatives on and after the date of this agreement (herein collectively referred to as the “Confidential Evaluation Material”), as follows:

Confidential Information shall only include technical information.

0contradiction

(a) In the event that COMPANY is required by law in any judicial or governmental proceeding or otherwise to disclose any XPLORE Information, COMPANY will give XPLORE prompt written notice of such request so that XPLORE may seek a protective order or appropriate remedy. If, in the absence of a protective order, COMPANY determines, upon the advice of counsel, that it is required to disclose such XPLORE Information, it may disclose such XPLORE Information only to the extent compelled to do so; provided, however, that COMPANY gives XPLORE written notice of the portion of XPLORE Information to be disclosed as far in advance of the disclosure as is practicable and uses its reasonable best efforts, at XPLORE’s expense, to obtain assurances that confidential treatment will be accorded to such XPLORE Information. (b) In the event that XPLORE is required by law in any judicial or governmental proceeding or otherwise to disclose any COMPANY Information, XPLORE will give COMPANY prompt written notice of such request so that COMPANY may seek a protective order or appropriate remedy.

All Confidential Information shall be expressly identified by the Disclosing Party.

2neutral

Any Confidential Evaluation Material that is retained by you or your representatives for the sole purpose of compliance with such law, regulation, policy or procedures shall not be used for any purpose other than to evidence compliance therewith and such retained material and information shall continue to be subject to the confidentiality obligations set forth in this letter agreement, which obligations shall survive any termination hereof.

Some obligations of Agreement may survive termination of Agreement.

1entailment

(7) The following information provided by the Company shall not be deemed Confidential Evaluation Material: (A) any information that is or becomes generally available to the public other than as a result of an improper disclosure by you or your representatives; (B) any information which becomes legally available to you from a source other than the Company that is not, to your knowledge after reasonable inquiry, bound by a confidentiality obligation to the Company; (C) any information that is already in your possession as of the date hereof or (D) any information that is independently developed by you without use of or reference to the Confidential Evaluation Material.

Receiving Party may independently develop information similar to Confidential Information.

1entailment

(6) At any time upon the Company’s request, all Confidential Evaluation Material (and all copies, summaries, and notes of the contents or parts thereof) shall be returned or, if you so choose, destroyed and not retained by you or your representatives in any form or for any reason and written certification to that effect will be sent by you to the Company within 30 days of such request; provided, however, that you and your representatives shall not be obligated to return or destroy the Confidential Evaluation Material if, and to the extent, otherwise required by any applicable law, regulation, policy or procedures relating to the retention, back-up storage or automatic archiving of files and data.

Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information.

1entailment

As a condition to the Company’s furnishing to you and your representatives financial and other information which has not theretofore been made available to the public, you and your representatives agree to treat all such non-public information furnished to you and your representatives in writing or orally by the Company or its representatives on and after the date of this agreement (herein collectively referred to as the “Confidential Evaluation Material”), as follows:

Confidential Information may include verbally conveyed information.

1entailment

Notwithstanding the above, each of COMPANY and XPLORE agree that the other Party may disclose the COMPANY Information and the XPLORE Information, respectively, and portions thereof, as well as the information described in clause (iv) of the preceding sentence, to those of such other Party’s directors, officers, employees and, representatives (including financial advisors, lawyers and accountants) of such other Party’s advisors (collectively, “Representatives”) who need to know such Information for the Permitted Use.

Receiving Party shall not solicit some of Disclosing Party's representatives.

2neutral

You also agree that you and your officers, employees, financing sources, consultants, Affiliates, agents and advisors, herein collectively referred to as “your representatives,” will not disclose or permit the disclosure of any of the Confidential Evaluation Material now or hereafter received or obtained from the Company or its representatives to any third party or otherwise use or permit the use of the Confidential Evaluation Material in any way detrimental to the Company, except as required by court order or legal process, without the prior written consent of the Company, provided, however, that any such information may be disclosed to such of your representatives who need to know such information for the purpose of evaluating the proposed transaction and who are advised of this agreement and agree to keep such information confidential and to be bound by this agreement to the same extent as if they were parties hereto, it being understood that you shall be responsible for any breach of this agreement by your representatives; provided, however, that you shall not be responsible for any failure to comply with the terms of this agreement by any of your representatives that (i) is not one of your officers, employees or Affiliates and (ii) has signed an undertaking in favor of the Company and you to the effect of Annex A hereto.

Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors).

1entailment

(a) In the event that COMPANY is required by law in any judicial or governmental proceeding or otherwise to disclose any XPLORE Information, COMPANY will give XPLORE prompt written notice of such request so that XPLORE may seek a protective order or appropriate remedy. If, in the absence of a protective order, COMPANY determines, upon the advice of counsel, that it is required to disclose such XPLORE Information, it may disclose such XPLORE Information only to the extent compelled to do so; provided, however, that COMPANY gives XPLORE written notice of the portion of XPLORE Information to be disclosed as far in advance of the disclosure as is practicable and uses its reasonable best efforts, at XPLORE’s expense, to obtain assurances that confidential treatment will be accorded to such XPLORE Information. (b) In the event that XPLORE is required by law in any judicial or governmental proceeding or otherwise to disclose any COMPANY Information, XPLORE will give COMPANY prompt written notice of such request so that COMPANY may seek a protective order or appropriate remedy.

Receiving Party may create a copy of some Confidential Information in some circumstances.

2neutral

(3) In the event you or your representatives receive a request to disclose Confidential Evaluation Material pursuant to any court order or legal process, you or your representatives will give the Company prompt written notice thereof so that the Company may seek an appropriate protective order.

Receiving Party shall notify Disclosing Party in case Receiving Party is required by law, regulation or judicial process to disclose any Confidential Information.

1entailment

(7) The following information provided by the Company shall not be deemed Confidential Evaluation Material: (A) any information that is or becomes generally available to the public other than as a result of an improper disclosure by you or your representatives; (B) any information which becomes legally available to you from a source other than the Company that is not, to your knowledge after reasonable inquiry, bound by a confidentiality obligation to the Company;

Receiving Party may acquire information similar to Confidential Information from a third party.

1entailment

You also agree that you and your officers, employees, financing sources, consultants, Affiliates, agents and advisors, herein collectively referred to as “your representatives,” will not disclose or permit the disclosure of any of the Confidential Evaluation Material now or hereafter received or obtained from the Company or its representatives to any third party or otherwise use or permit the use of the Confidential Evaluation Material in any way detrimental to the Company, except as required by court order or legal process, without the prior written consent of the Company, provided, however, that any such information may be disclosed to such of your representatives who need to know such information for the purpose of evaluating the proposed transaction and who are advised of this agreement and agree to keep such information confidential and to be bound by this agreement to the same extent as if they were parties hereto, it being understood that you shall be responsible for any breach of this agreement by your representatives; provided, however, that you shall not be responsible for any failure to comply with the terms of this agreement by any of your representatives that

Receiving Party may share some Confidential Information with some of Receiving Party's employees.

1entailment

Any Confidential Evaluation Material that is retained by you or your representatives for the sole purpose of compliance with such law, regulation, policy or procedures shall not be used for any purpose other than to evidence compliance therewith and such retained material and information shall continue to be subject to the confidentiality obligations set forth in this letter agreement, which obligations shall survive any termination hereof.

Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information.

2neutral

If the Receiving Party determines not to proceed with the Transaction, the Receiving Party will promptly inform the Disclosing Party of that decision and, in that case, upon the request of the Disclosing Party or any of its Representatives, the Receiving Party will: (a) destroy all copies of the written Confidential Information in the Receiving Party’s possession (other than any of your own Analyses), and (b) promptly destroy all the Disclosing Party’s Analyses; provided however, that nothing in this Agreement shall require the destruction of investment memoranda prepared by the Receiving Party in the ordinary course of business and retained in accordance with the Receiving Party’s general retention policies or computer backup tapes or copies of Confidential Information or Analyses created pursuant to automated archiving or backup procedures; and provided further that the Receiving Party’s records department may retain one copy of such Confidential Information, subject to the terms of this Agreement, solely for compliance with legal or regulatory obligations or pursuant to its internal document retention policies.

Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement.

1entailment

The term Confidential Information also includes, without limitation: (a) the identity (by name or identifiable description) of the parties hereto; (b) the fact that the parties hereto are considering a Transaction; and (c) all analyses, compilations, forecasts, summaries, studies or other materials prepared by the Receiving Party and its Representatives (as defined below) in connection with their review of, or the Receiving Party’s interest in, the Transaction which, in whole or in part, contain or reflect or are based on any information referred to in this Section (“Analyses”). All information not meeting the requirements of this Section shall be considered non-confidential. 2. For a period of three (3) years from the date of initial disclosure, Confidential Information received by the Receiving Party from the Disclosing Party hereunder shall be: (a) held in confidence by the Receiving Party and not disclosed to any third party; and (b) used by the Receiving Party only for the purpose of evaluating and completing the Transaction. The Receiving Party may disclose Confidential Information on a need to know basis to its and its affiliates’ officers, directors, employees, consultants and advisors (including, without limitation, financial advisors, investment banks, the agents and lenders under the Receiving Party’s existing credit facilities, attorneys and accountants) (“Representatives”) who have a need to know such information for purposes of evaluation and completion of the Transaction; provided that such Representatives shall be bound by terms of confidentiality and non-use consistent with those set forth in this Agreement. Each party will direct its Representatives not to disclose to any other person either: (a) the fact that the Confidential Information exists or has been made available to the Receiving Party, (b) that the parties are considering the Transaction, or (c) that discussions or negotiations are taking place or have taken place between the parties concerning the Transaction or any of the terms, conditions or other facts relating to the Transaction with the Receiving Party or such discussions or negotiations, including the status thereof or the subject matter of this Agreement (the matters described in the foregoing clauses (a)-(c) being referred to herein as “Transaction Information”).

Receiving Party shall not disclose the fact that Agreement was agreed or negotiated.

1entailment

Confidential Information includes, without limitation, information, know-how, specifications, materials, models, plans, discoveries, trade secrets (as such term is defined in the Uniform Trade Secrets Act in effect on the Effective Date), records, data, business, marketing, manufacturing and financial records, operations and strategies, invention plans, distribution channels, and technical and product information, customer data, product services, information of the Disclosing Party’s subsidiaries and entities under its control and other communications concerning the Transaction and/or the Disclosing Party’s business and operations, together with all portions of analyses, compilations, notes, studies and other documents prepared by or for the benefit of the Receiving Party which contain or otherwise reflect any of the foregoing.

Confidential Information shall only include technical information.

0contradiction

All the Confidential Evaluation Material will be and remains the property of the Company. (7) The following information provided by the Company shall not be deemed Confidential Evaluation Material: (A) any information that is or becomes generally available to the public other than as a result of an improper disclosure by you or your representatives; (B) any information which becomes legally available to you from a source other than the Company that is not, to your knowledge after reasonable inquiry, bound by a confidentiality obligation to the Company; (C) any information that is already in your possession as of the date hereof or (D) any information that is independently developed by you without use of or reference to the Confidential Evaluation Material. (8) Neither this letter agreement nor any action taken in connection with this letter agreement will give rise to any obligation on the part of either you or the Company (a) to engage in any discussions or negotiations with the other party or with any of the other party’s representatives, or (b) to pursue or enter into any transaction of any nature with the other party. The parties acknowledge and agree that neither shall have any legally binding commitment for a transaction unless set forth in a separate written agreement that is executed and delivered by both of them. (9) Nothing contained in this letter agreement nor the conveying of Confidential Evaluation Material hereunder shall be construed as granting or conferring any rights by license or otherwise in any trademark, patent, copyright, trade secret, technological information or other information, or other intellectual property.

All Confidential Information shall be expressly identified by the Disclosing Party.

2neutral

3. The term Confidential Information does not include any information which: (a) is or becomes publicly available other than as a result of a disclosure by the Receiving Party or its Representatives in violation of this Agreement or other obligation of confidentiality, or (b) is or becomes available to the Receiving Party on a non-confidential basis from a source (other than the Disclosing Party or its Representatives) who is not known by the Receiving Party to be prohibited from disclosing such information by a legal, contractual or fiduciary obligation, or (c) is already in the Receiving Party’s or its Representatives’ possession (other than information furnished by or on behalf of the Disclosing Party), or (d) is independently developed by a party or any of its Representatives without violating any of such party’s obligations hereunder or without reference to the Confidential Information.

Receiving Party may independently develop information similar to Confidential Information.

1entailment

If the Receiving Party determines not to proceed with the Transaction, the Receiving Party will promptly inform the Disclosing Party of that decision and, in that case, upon the request of the Disclosing Party or any of its Representatives, the Receiving Party will: (a) destroy all copies of the written Confidential Information in the Receiving Party’s possession (other than any of your own Analyses), and (b) promptly destroy all the Disclosing Party’s Analyses; provided however, that nothing in this Agreement shall require the destruction of investment memoranda prepared by the Receiving Party in the ordinary course of business and retained in accordance with the Receiving Party’s general retention policies or computer backup tapes or copies of Confidential Information or Analyses created pursuant to automated archiving or backup procedures; and provided further that the Receiving Party’s records department may retain one copy of such Confidential Information, subject to the terms of this Agreement, solely for compliance with legal or regulatory obligations or pursuant to its internal document retention policies.

Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information.

1entailment

(4) Except as may be required by court order or legal process, neither party hereto nor any of its representatives will disclose to any other person or entity: (a) the fact that information regarding the Company is being or has been furnished to you; (b) the fact that discussions or negotiations regarding any transaction are or have been taking place between representatives of you and the Company, or any information regarding the status or terms of any such discussions or negotiations between the Company and you or the identity of the parties thereto; (c) the fact that the Company is or has been considering the possibility of entering into a transaction with you of the nature discussed by you and the Company.

Confidential Information may include verbally conveyed information.

2neutral

11. Each party agrees that for a period of two (2) years from the date of this Agreement, neither it nor any of its Representatives will, directly or indirectly, solicit for employment or employ any individual serving as an officer of the Disclosing Party or any employee of the Disclosing Party or any of its subsidiaries, in each case with whom the Receiving Party has had substantial contact during its investigation of the Disclosing Party and its business, in each case without obtaining the prior written consent of the Disclosing Party; provided that the Receiving Party may make general solicitations for employment not specifically directed at the Disclosing Party or any of its subsidiaries or their respective employees (including, without limitation, by a bona fide search firm) and solicit and employ

Receiving Party shall not solicit some of Disclosing Party's representatives.

1entailment

The Receiving Party may disclose Confidential Information on a need to know basis to its and its affiliates’ officers, directors, employees, consultants and advisors (including, without limitation, financial advisors, investment banks, the agents and lenders under the Receiving Party’s existing credit facilities, attorneys and accountants) (“Representatives”) who have a need to know such information for purposes of evaluation and completion of the Transaction; provided that such Representatives shall be bound by terms of confidentiality and non-use consistent with those set forth in this Agreement.

Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors).

1entailment

(4) Except as may be required by court order or legal process, neither party hereto nor any of its representatives will disclose to any other person or entity: (a) the fact that information regarding the Company is being or has been furnished to you; (b) the fact that discussions or negotiations regarding any transaction are or have been taking place between representatives of you and the Company, or any information regarding the status or terms of any such discussions or negotiations between the Company and you or the identity of the parties thereto; (c) the fact that the Company is or has been considering the possibility of entering into a transaction with you of the nature discussed by you and the Company.

Receiving Party may create a copy of some Confidential Information in some circumstances.

2neutral

5. Notwithstanding anything to the contrary provided in this Agreement other than, and subject to, Section 12 of this Agreement, in the event the Receiving Party or any of its Representatives receives a request pursuant to or is required by law, rule, regulation, deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Disclosing Party’s Confidential Information or Transaction Information, the Receiving Party or its Representatives, as the case may be, agree to (to the extent practicable and legally permissible) (a) promptly notify the Disclosing Party of the existence, terms and circumstances surrounding such External Demand,

Receiving Party shall notify Disclosing Party in case Receiving Party is required by law, regulation or judicial process to disclose any Confidential Information.

1entailment

3. The term Confidential Information does not include any information which: (a) is or becomes publicly available other than as a result of a disclosure by the Receiving Party or its Representatives in violation of this Agreement or other obligation of confidentiality, or (b) is or becomes available to the Receiving Party on a non-confidential basis from a source (other than the Disclosing Party or its Representatives) who is not known by the Receiving Party to be prohibited from disclosing such information by a legal, contractual or fiduciary obligation, or

Receiving Party may acquire information similar to Confidential Information from a third party.

1entailment

The Receiving Party may disclose Confidential Information on a need to know basis to its and its affiliates’ officers, directors, employees, consultants and advisors (including, without limitation, financial advisors, investment banks, the agents and lenders under the Receiving Party’s existing credit facilities, attorneys and accountants) (“Representatives”) who have a need to know such information for purposes of evaluation and completion of the Transaction; provided that such Representatives shall be bound by terms of confidentiality and non-use consistent with those set forth in this Agreement.

Receiving Party may share some Confidential Information with some of Receiving Party's employees.

1entailment

3. The term Confidential Information does not include any information which: (a) is or becomes publicly available other than as a result of a disclosure by the Receiving Party or its Representatives in violation of this Agreement or other obligation of confidentiality, or (b) is or becomes available to the Receiving Party on a non-confidential basis from a source (other than the Disclosing Party or its Representatives) who is not known by the Receiving Party to be prohibited from disclosing such information by a legal, contractual or fiduciary obligation, or (c) is already in the Receiving Party’s or its Representatives’ possession (other than information furnished by or on behalf of the Disclosing Party), or (d) is independently developed by a party or any of its Representatives without violating any of such party’s obligations hereunder or without reference to the Confidential Information.

Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information.

2neutral

If either Company decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the other Company of that decision. In that case, or at any time upon the request of a Provider for any reason, a Recipient will, and will cause its Representatives to, within five business days after receipt of such notice or request, destroy or return all Evaluation Material in any way relating to the Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be retained.

Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement.

1entailment

This Agreement does not grant a Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as provided herein.

Agreement shall not grant Receiving Party any right to Confidential Information.

1entailment

Subject to Section 5, Potential Buyer agrees that, without the prior written consent of Convio, Potential Buyer will not, and will cause its Representatives not to, disclose to any other Person (i) that Evaluation Material has been exchanged between the Companies, (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction, or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof).

Receiving Party shall not disclose the fact that Agreement was agreed or negotiated.

1entailment

(a) The term “Evaluation Material” means information concerning the Provider which has been or is furnished to the Recipient or its Representatives (as defined below) in connection with the Recipient’s evaluation of a Possible Transaction, including its business, financial condition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies, interpretations or other documents prepared by the Recipient or its Representatives which contain or are based upon, in whole or in part, the information furnished by the Provider hereunder.

Confidential Information shall only include technical information.

0contradiction

If the Receiving Party determines not to proceed with the Transaction, the Receiving Party will promptly inform the Disclosing Party of that decision and, in that case, upon the request of the Disclosing Party or any of its Representatives, the Receiving Party will: (a) destroy all copies of the written Confidential Information in the Receiving Party’s possession (other than any of your own Analyses), and (b) promptly destroy all the Disclosing Party’s Analyses; provided however, that nothing in this Agreement shall require the destruction of investment memoranda prepared by the Receiving Party in the ordinary course of business and retained in accordance with the Receiving Party’s general retention policies or computer backup tapes or copies of Confidential Information or Analyses created pursuant to automated archiving or backup procedures; and provided further that the Receiving Party’s records department may retain one copy of such Confidential Information, subject to the terms of this Agreement, solely for compliance with legal or regulatory obligations or pursuant to its internal document retention policies.

All Confidential Information shall be expressly identified by the Disclosing Party.

2neutral

The term Evaluation Material does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was within the Recipient’s possession prior to its being furnished to the Recipient by or on behalf of the Provider, provided that the source of such information was not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information, (iii) is or becomes available to the Recipient on a non-confidential basis from a source other than the Provider or its Representatives, provided that such source is not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information or (iv) is or has been independently developed by an employee, agent or contractor of the Recipient without use or reference to any information furnished by Provider or its Representatives.

Receiving Party may independently develop information similar to Confidential Information.

1entailment

If either Company decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the other Company of that decision. In that case, or at any time upon the request of a Provider for any reason, a Recipient will, and will cause its Representatives to, within five business days after receipt of such notice or request, destroy or return all Evaluation Material in any way relating to the Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be retained.

Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information.

0contradiction

3. The term Confidential Information does not include any information which: (a) is or becomes publicly available other than as a result of a disclosure by the Receiving Party or its Representatives in violation of this Agreement or other obligation of confidentiality, or (b) is or becomes available to the Receiving Party on a non-confidential basis from a source (other than the Disclosing Party or its Representatives) who is not known by the Receiving Party to be prohibited from disclosing such information by a legal, contractual or fiduciary obligation, or (c) is already in the Receiving Party’s or its Representatives’ possession (other than information furnished by or on behalf of the Disclosing Party), or (d) is independently developed by a party or any of its Representatives without violating any of such party’s obligations hereunder or without reference to the Confidential Information.

Confidential Information may include verbally conveyed information.

2neutral

Neither Recipient will, within twelve (12) months from the date of this Agreement, directly or indirectly solicit the employment or consulting services of or employ or engage as a consultant any of the officers of Provider or any other employees or contractors of the Provider engaged in evaluating the Potential Transaction or information about whom has been provided to Recipient in connection with evaluating the Potential Transaction, so long as they are employed by the Provider and for six months after they cease to be employed by Provider. A Recipient is not prohibited from soliciting by means of a general advertisement not directed at (i) any particular individual or (ii) the employees of the Provider generally. 8. Standstill. Each Company agrees that, for a period of fourteen (14) months after the date of this Agreement (the “Standstill Period”), unless specifically invited in writing by the other Company, neither it nor any of its affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “1934 Act”)) or Representatives (acting in any capacity other than as an advisor in any of the following cases) will in any manner, directly or indirectly: (a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in: (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Company or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving the other Company or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Company or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Company;

Receiving Party shall not solicit some of Disclosing Party's representatives.

1entailment

(b) The term “Representatives” shall include the directors, officers, employees, agents, partners or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) of the Recipient or Provider, as applicable. (c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity. 3. Use of Evaluation Material. Each Recipient shall, and it shall cause its Representatives to, use the Evaluation Material solely for the purpose of evaluating a Possible Transaction, keep the Evaluation Material confidential, and, subject to Section 5, will not, and will cause its Representatives not to, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such information may be disclosed to the Recipient’s Representatives who need to know such information for the sole purpose of helping the Recipient evaluate a Possible Transaction.

Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors).

1entailment

5. Notwithstanding anything to the contrary provided in this Agreement other than, and subject to, Section 12 of this Agreement, in the event the Receiving Party or any of its Representatives receives a request pursuant to or is required by law, rule, regulation, deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Disclosing Party’s Confidential Information or Transaction Information, the Receiving Party or its Representatives, as the case may be, agree to (to the extent practicable and legally permissible) (a) promptly notify the Disclosing Party of the existence, terms and circumstances surrounding such External Demand,

Receiving Party may create a copy of some Confidential Information in some circumstances.

2neutral

If a Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall provide the Provider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed so that the Provider may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement.

Receiving Party shall notify Disclosing Party in case Receiving Party is required by law, regulation or judicial process to disclose any Confidential Information.

1entailment

The term Evaluation Material does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was within the Recipient’s possession prior to its being furnished to the Recipient by or on behalf of the Provider, provided that the source of such information was not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information, (iii) is or becomes available to the Recipient on a non-confidential basis from a source other than the Provider or its Representatives, provided that such source is not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information or

Receiving Party may acquire information similar to Confidential Information from a third party.

1entailment

(b) The term “Representatives” shall include the directors, officers, employees, agents, partners or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) of the Recipient or Provider, as applicable. (c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity. 3. Use of Evaluation Material. Each Recipient shall, and it shall cause its Representatives to, use the Evaluation Material solely for the purpose of evaluating a Possible Transaction, keep the Evaluation Material confidential, and, subject to Section 5, will not, and will cause its Representatives not to, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such information may be disclosed to the Recipient’s Representatives who need to know such information for the sole purpose of helping the Recipient evaluate a Possible Transaction.

Receiving Party may share some Confidential Information with some of Receiving Party's employees.

1entailment

Each Recipient shall, and it shall cause its Representatives to, use the Evaluation Material solely for the purpose of evaluating a Possible Transaction, keep the Evaluation Material confidential, and, subject to Section 5, will not, and

Receiving Party shall not use any Confidential Information for any purpose other than the purposes stated in Agreement.

1entailment

The term Evaluation Material does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was within the Recipient’s possession prior to its being furnished to the Recipient by or on behalf of the Provider, provided that the source of such information was not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information, (iii) is or becomes available to the Recipient on a non-confidential basis from a source other than the Provider or its Representatives, provided that such source is not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information or (iv) is or has been independently developed by an employee, agent or contractor of the Recipient without use or reference to any information furnished by Provider or its Representatives.

Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information.

2neutral

If either Company decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the other Company of that decision. In that case, or at any time upon the request of a Provider for any reason, a Recipient will, and will cause its Representatives to, within five business days after receipt of such notice or request, destroy or return all Evaluation Material in any way relating to the Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be retained.

Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement.

2neutral

Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to the Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except as specified in this Agreement. 10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter into any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license under any patent, trade secret, copyright, trademark, or other proprietary rights of either party. In the event that the Confidential Information is or becomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party agrees and understands that the Disclosing Party will have all rights and remedies available to it under the applicable law as a result of said Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright. In the event that the Confidential Information is or becomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party shall not be in breach of this Agreement simply by acting in accordance with its terms and conditions. 11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential information is owned solely by the Disclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information would cause irreparable harm and significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy.

Agreement shall not grant Receiving Party any right to Confidential Information.

1entailment

The term Evaluation Material does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was within the Recipient’s possession prior to its being furnished to the Recipient by or on behalf of the Provider, provided that the source of such information was not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information, (iii) is or becomes available to the Recipient on a non-confidential basis from a source other than the Provider or its Representatives, provided that such source is not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information or (iv) is or has been independently developed by an employee, agent or contractor of the Recipient without use or reference to any information furnished by Provider or its Representatives.

Receiving Party shall not disclose the fact that Agreement was agreed or negotiated.

2neutral

(a) “Confidential Information” shall mean: (i) with respect to NEW RIVER, information as defined generally in section l(a)(ii) following, as well as information, in any format, whether written, oral, visual, electronic, or otherwise, and whether commercial, technical, non-technical, or regulatory in nature, including, without limitation, data, know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, samples, reports, pricing information, studies, findings, inventions, ideas, materials, documents, lists, financial information, investments, information concerning current or proposed products, services or methods of manufacture, operation and/or business plans, whether or not originated by NEW RIVER, which relates to NEW RIVER’s proprietary polypeptide and polymer conjugate chemistry and NEW RIVER’s platform technology CarrierwaveTM, and processes and analytical techniques associated with these products/technologies and their successors. Where any Confidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various elements that may be contained in the public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be in SHIRE’s possession or to be thereafter acquired by SHIRE merely because it embraces information in the public domain or general information that SHIRE may thereafter acquire. (ii) with respect to either Party, information, in any format, whether written, oral, visual, electronic, or otherwise, including, without limitation, data, materials, documents, lists, financial information, investments, information concerning current or proposed products, services or methods of operation and/or business plans, whether or not originated by the Disclosing Party, which is used in Disclosing Party’s business and is

Confidential Information shall only include technical information.

0contradiction

This Agreement does not grant a Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as provided herein.

Some obligations of Agreement may survive termination of Agreement.

2neutral

Confidential Information shall not include information which the Receiving Party is able to demonstrate by competent proof: (a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the industry, or is now or later enters the public domain through no act or omission on the part of the Receiving Party; (b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party under this Agreement as shown by the Receiving Party’s written records; (c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or disclosure; (d) is information which the Receiving Party can document was independently developed by the Receiving Party without reference to Confidential Information furnished by the Disclosing Party;

Receiving Party may independently develop information similar to Confidential Information.

1entailment

Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party all materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof.

Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information.

0contradiction

Neither Recipient will, within twelve (12) months from the date of this Agreement, directly or indirectly solicit the employment or consulting services of or employ or engage as a consultant any of the officers of Provider or any other employees or contractors of the Provider engaged in evaluating the Potential Transaction or information about whom has been provided to Recipient in connection with evaluating the Potential Transaction, so long as they are employed by the Provider and for six months after they cease to be employed by Provider. A Recipient is not prohibited from soliciting by means of a general advertisement not directed at (i) any particular individual or (ii) the employees of the Provider generally. 8. Standstill. Each Company agrees that, for a period of fourteen (14) months after the date of this Agreement (the “Standstill Period”), unless specifically invited in writing by the other Company, neither it nor any of its affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “1934 Act”)) or Representatives (acting in any capacity other than as an advisor in any of the following cases) will in any manner, directly or indirectly: (a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in: (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Company or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving the other Company or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Company or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Company;

Receiving Party shall not solicit some of Disclosing Party's representatives.

2neutral

Each Party may disclose the other Party’s Confidential Information to its directors, officers, members, managers, employees, legal advisors, and financial advisors (each bound by obligations of confidentiality consistent with this Agreement) who have bona fide need to know, but only to the extent necessary to carry out the Business Purpose.

Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors).

1entailment

Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to the Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except as specified in this Agreement. 10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter into any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license under any patent, trade secret, copyright, trademark, or other proprietary rights of either party. In the event that the Confidential Information is or becomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party agrees and understands that the Disclosing Party will have all rights and remedies available to it under the applicable law as a result of said Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright. In the event that the Confidential Information is or becomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party shall not be in breach of this Agreement simply by acting in accordance with its terms and conditions. 11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential information is owned solely by the Disclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information would cause irreparable harm and significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy.

Receiving Party may create a copy of some Confidential Information in some circumstances.

2neutral

Confidential Information shall not include information which the Receiving Party is able to demonstrate by competent proof: (a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the industry, or is now or later enters the public domain through no act or omission on the part of the Receiving Party; (b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party under this Agreement as shown by the Receiving Party’s written records; (c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or disclosure; (d) is information which the Receiving Party can document was independently developed by the Receiving Party without reference to Confidential Information furnished by the Disclosing Party; (e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided the Receiving Party uses reasonable efforts to give the Disclosing Party reasonable notice of such required disclosure; or

Receiving Party shall notify Disclosing Party in case Receiving Party is required by law, regulation or judicial process to disclose any Confidential Information.

1entailment

Confidential Information shall not include information which the Receiving Party is able to demonstrate by competent proof: (a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the industry, or is now or later enters the public domain through no act or omission on the part of the Receiving Party; (b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party under this Agreement as shown by the Receiving Party’s written records; (c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or disclosure;

Receiving Party may acquire information similar to Confidential Information from a third party.

1entailment

Each Party may disclose the other Party’s Confidential Information to its directors, officers, members, managers, employees, legal advisors, and financial advisors (each bound by obligations of confidentiality consistent with this Agreement) who have bona fide need to know, but only to the extent necessary to carry out the Business Purpose.

Receiving Party may share some Confidential Information with some of Receiving Party's employees.

1entailment

Each Party agrees: (a) to hold the other Party’s Confidential Information in strict confidence; (b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to its own Confidential Information; (c) not to disclose such Confidential Information to third parties; and (d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior, written consent of the Disclosing Party.

Receiving Party shall not use any Confidential Information for any purpose other than the purposes stated in Agreement.

1entailment

Confidential Information shall not include information which the Receiving Party is able to demonstrate by competent proof: (a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the industry, or is now or later enters the public domain through no act or omission on the part of the Receiving Party; (b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party under this Agreement as shown by the Receiving Party’s written records; (c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or disclosure; (d) is information which the Receiving Party can document was independently developed by the Receiving Party without reference to Confidential Information furnished by the Disclosing Party;

Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information.

2neutral

Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party all materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof.

Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement.

2neutral

Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to the Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except for the Business Purpose. 10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter into any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license under any patent, trade secret, copyright, trademark, or other proprietary rights of either Party. 11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential Information is owned solely by the Disclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information may cause irreparable harm and significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy.

Agreement shall not grant Receiving Party any right to Confidential Information.

1entailment

(a) “Confidential Information” shall mean commercial, corporate, scientific, regulatory and technical information, including, without limitation, data, materials, documents, agreements, lists, financial information, investments, information concerning current or proposed products, technologies, applications, service or methods of operation and/or business plans, customers, suppliers, and any copies or versions of the information disclosed, relating to NEW CONFIDENTIAL RIVER or SHIRE, that NEW RIVER or SHIRE, respectively, regards as its highly valuable trade secrets, confidential information, and proprietary property.

Confidential Information shall only include technical information.

0contradiction

Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to the Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except as specified in this Agreement. 10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter into any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license under any patent, trade secret, copyright, trademark, or other proprietary rights of either party. In the event that the Confidential Information is or becomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party agrees and understands that the Disclosing Party will have all rights and remedies available to it under the applicable law as a result of said Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright. In the event that the Confidential Information is or becomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party shall not be in breach of this Agreement simply by acting in accordance with its terms and conditions. 11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential information is owned solely by the Disclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information would cause irreparable harm and significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy.

All Confidential Information shall be expressly identified by the Disclosing Party.

2neutral

This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under Paragraph 6, sets forth the entire agreement between the Parties with respect to the subject matter hereof, and it may not be modified or amended except by a written agreement executed by the parties hereto; provided, however, (a) each existing confidentiality agreement between some or all of the Parties shall survive the execution of this Agreement and continue in full force and effect in accordance with its stated terms and conditions, and (b) the confidentiality obligations arising under the United States Collaboration Agreement, dated March 31, 2005, by and among Shire LLC, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., or under the ROW Territory License Agreement, dated March 31, 2005, by and among Shire Pharmaceuticals Ireland Limited, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., shall survive the execution of this Agreement and continue in full force and effect in accordance with the stated terms and conditions of each.

Some obligations of Agreement may survive termination of Agreement.

1entailment

The confidentiality and non-use provisions of this Agreement shall not include information that the Receiving Party is able to demonstrate by competent proof:

Receiving Party may independently develop information similar to Confidential Information.

1entailment

Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party all materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof; provided, however, Receiving Party’s legal department or outside legal counsel may maintain a single copy of Disclosing Party’s Confidential Information for purposes of regulatory compliance and compliance with the terms and conditions of this Agreement.

Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information.

1entailment

WHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either NEW RIVER or SHIRE or both Parties to disclose Confidential Information (as defined below) to a Receiving Party, whether orally, in writing, graphically, electronically or by visual inspection of the premises of the Disclosing Party, and

Confidential Information may include verbally conveyed information.

1entailment

Confidential Information shall not include information which the Receiving Party is able to demonstrate by competent proof: (a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the industry, or is now or later enters the public domain through no act or omission on the part of the Receiving Party; (b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party under this Agreement as shown by the Receiving Party’s written records; (c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or disclosure; (d) is information which the Receiving Party can document was independently developed by the Receiving Party without reference to Confidential Information furnished by the Disclosing Party;

Receiving Party shall not solicit some of Disclosing Party's representatives.

2neutral

Each Party agrees: (a) to hold the other Party’s Confidential Information in strict confidence in accordance with this Agreement; (b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to its own Confidential Information (but in no event less than reasonable care); (c) not to disclose such Confidential Information to third parties (including, without limitation, any clients, affiliates, independent contractors and consultants) without the prior, written consent of the Disclosing Party except as expressly permitted under Paragraph 4; and (d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior written consent of the Disclosing Party. 4. Disclosure to Representatives, Conduct of Activities, and Prohibited Activities. (a) Subject to the restrictions set forth below in this Section 4, each Party may disclose the other Party’s Confidential Information to its directors, officers, employees, legal advisors, financial advisors and accountants, each bound by obligations of confidentiality consistent with this Agreement, who have a bona fide need to know (“Representatives”), but only to the extent necessary to carry out the Business Purpose.

Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors).

1entailment

Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to the Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except as specified in this Agreement. 10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter into any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license under any patent, trade secret, copyright, trademark, or other proprietary rights of either party. In the event that the Confidential Information is or becomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party agrees and understands that the Disclosing Party will have all rights and remedies available to it under the applicable law as a result of said Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright. In the event that the Confidential Information is or becomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party shall not be in breach of this Agreement simply by acting in accordance with its terms and conditions. 11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential information is owned solely by the Disclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information would cause irreparable harm and significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy.

Receiving Party may create a copy of some Confidential Information in some circumstances.

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The confidentiality and non-use provisions of this Agreement shall not include information that the Receiving Party is able to demonstrate by competent proof: (a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the industry without restriction as to its use or disclosure, or is now or later enters the public domain through no act or omission on the part of the Receiving Party; (b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party as shown by the Receiving Party’s written records; (c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or disclosure; (d) is information that the Receiving Party can document was independently developed by or for the Receiving Party without reference to Confidential Information acquired from the Disclosing Party; (e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided that (i) the Receiving Party shall have used reasonable efforts to give the Disclosing Party prompt notice of any required disclosure, and

Receiving Party shall notify Disclosing Party in case Receiving Party is required by law, regulation or judicial process to disclose any Confidential Information.

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The confidentiality and non-use provisions of this Agreement shall not include information that the Receiving Party is able to demonstrate by competent proof: (a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the industry without restriction as to its use or disclosure, or is now or later enters the public domain through no act or omission on the part of the Receiving Party; (b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party as shown by the Receiving Party’s written records; (c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or disclosure;

Receiving Party may acquire information similar to Confidential Information from a third party.

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(a) Subject to the restrictions set forth below in this Section 4, each Party may disclose the other Party’s Confidential Information to its directors, officers, employees, legal advisors, financial advisors and accountants, each bound by obligations of confidentiality consistent with this Agreement, who have a bona fide need to know (“Representatives”), but only to the extent necessary to carry out the Business Purpose.

Receiving Party may share some Confidential Information with some of Receiving Party's employees.

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The confidentiality and non-use provisions of this Agreement shall not include information that the Receiving Party is able to demonstrate by competent proof: (a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the industry without restriction as to its use or disclosure, or is now or later enters the public domain through no act or omission on the part of the Receiving Party; (b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party as shown by the Receiving Party’s written records; (c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or disclosure; (d) is information that the Receiving Party can document was independently developed by or for the Receiving Party without reference to Confidential Information acquired from the Disclosing Party; (e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided that (i) the Receiving Party shall have used reasonable efforts to give the Disclosing Party prompt notice of any required disclosure, and

Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information.

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If either party decides that it does not wish to proceed with a Transaction with the other party, the party so deciding will inform the other party of that decision. In that case, or at any time upon the written request of either disclosing party for any reason, each receiving party will promptly deliver to the disclosing party or destroy all Evaluation Material that was furnished to the receiving party or its Representatives by or on behalf of the disclosing party, by whichever method requested by the disclosing party, pursuant hereto.

Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement.

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The confidentiality and non-use provisions of this Agreement shall not include information that the Receiving Party is able to demonstrate by competent proof: (a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the industry without restriction as to its use or disclosure, or is now or later enters the public domain through no act or omission on the part of the Receiving Party; (b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party as shown by the Receiving Party’s written records; (c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or disclosure;

Agreement shall not grant Receiving Party any right to Confidential Information.

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Subject to the above, each party agrees that, without the prior written consent of the other party, neither it nor its Representatives will disclose to any other person the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including that status thereof) provided, that a party may make such disclosure if such party determines,with the advice of counsel, that such disclosure is required by applicable law or regulation or under any listing agreement with respect to such party's securities.

Receiving Party shall not disclose the fact that Agreement was agreed or negotiated.

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The confidentiality and non-use provisions of this Agreement shall not include information that the Receiving Party is able to demonstrate by competent proof:

Confidential Information shall only include technical information.

2neutral

Each Party agrees: (a) to hold the other Party’s Confidential Information in strict confidence in accordance with this Agreement; (b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to its own Confidential Information (but in no event less than reasonable care); (c) not to disclose such Confidential Information to third parties (including, without limitation, any clients, affiliates, independent contractors and consultants) without the prior, written consent of the Disclosing Party except as expressly permitted under Paragraph 4; and (d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior written consent of the Disclosing Party. 4. Disclosure to Representatives, Conduct of Activities, and Prohibited Activities. (a) Subject to the restrictions set forth below in this Section 4, each Party may disclose the other Party’s Confidential Information to its directors, officers, employees, legal advisors, financial advisors and accountants, each bound by obligations of confidentiality consistent with this Agreement, who have a bona fide need to know (“Representatives”), but only to the extent necessary to carry out the Business Purpose.

All Confidential Information shall be expressly identified by the Disclosing Party.

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The term "Evaluation Material" does not include information which (i) is or becomes generally available to the public other than as a result of a breach of this Agreement by the receiving party or its Representatives, (ii) was within the receiving party's possession prior to its being furnished to the receiving party by or on behalf of the disclosing party, provided that the source of such information was not known by the receiving party to the bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party or any other party with respect to such information, (iii) is or becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party or any of its Representatives, provided that such source was not known by the receiving party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party or any other party with respect to such information, (iv) is disclosed by the disclosing party to a third party without a duty of confidentiality, (v) is independently developed by the receiving party or any of its Representatives without use of Evaluation Material and can be proved by competent evidence,

Receiving Party may independently develop information similar to Confidential Information.

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In no event shall the receiving party be obligated to disclose or provide the copies, extracts and summaries of the disclosing party's Evaluation Material prepared by it or its Representatives to the disclosing party. Notwithstanding the foregoing, the receiving party may retain one (1) copy of the disclosing party's Evaluation Material solely for purposes of monitoring its compliance with this Agreement.

Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information.

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The term "Evaluation Material" also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents (whether in paper, electronic or any other form) prepared by each or its Representatives which contain, reflect or are based upon, in whole or in part, the information furnished to such party or its Representatives pursuant hereto which is not available to the general public and would otherwise constitute Evaluation Material hereunder.

Confidential Information may include verbally conveyed information.

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During the term of this Agreement, neither party shall, without the prior written consent of the other party, directly or indirectly solicit the employment of any employee of such other party, unless such employee seeks employment on an unsolicited basis or in response to general solicitations or advertising or third party employment agencies, provided that such general solicitations or advertising is made, taken out and distributed in the ordinary course and not in an effort to specifically target employees of the other party.

Receiving Party shall not solicit some of Disclosing Party's representatives.

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This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under Paragraph 6, sets forth the entire agreement between the Parties with respect to the subject matter hereof, and it may not be modified or amended except by a written agreement executed by the parties hereto; provided, however, (a) each existing confidentiality agreement between some or all of the Parties shall survive the execution of this Agreement and continue in full force and effect in accordance with its stated terms and conditions, and (b) the confidentiality obligations arising under the United States Collaboration Agreement, dated March 31, 2005, by and among Shire LLC, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., or under the ROW Territory License Agreement, dated March 31, 2005, by and among Shire Pharmaceuticals Ireland Limited, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., shall survive the execution of this Agreement and continue in full force and effect in accordance with the stated terms and conditions of each.

Receiving Party may create a copy of some Confidential Information in some circumstances.

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In the event that a party or its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the other party's Evaluation Material, the party requested or required to make the disclosure shall provide the other party with prompt notice of any such request or requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement.

Receiving Party shall notify Disclosing Party in case Receiving Party is required by law, regulation or judicial process to disclose any Confidential Information.

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